contingency contracts

Contingency Contracts in Business Negotiations

Use contingency contracts as a way to manage risk

The following question about contingency contracts was posed to Katherine Shonk, editor of Negotiation Briefings and a Harvard Kennedy School and Harvard Business School Research Associate.

Contingency Contracts and Negotiation

Question:

Lately I have been hearing a lot—both in the news and on the job—about companies using contingencies in contracts. Given that I sometimes negotiate deals that entail a lot of risk regarding how future events will play out, I am interested to know how contingencies work and how I might use them.

Negotiation Skills

Claim your FREE copy: Negotiation Skills

Build powerful negotiation skills and become a better dealmaker and leader. Download our FREE special report, Negotiation Skills: Negotiation Strategies and Negotiation Techniques to Help You Become a Better Negotiator, from the Program on Negotiation at Harvard Law School.


Answer:

Contingent contracts have, indeed, been in the news recently, and you are correct to view them as a tool for managing risk. Negotiators often try to overcome their differences of opinion about how future events will unfold through persuasion techniques. A more fruitful approach might be to “bet” on your differing views. By adding incentives or penalties based on future performance to your contract, you protect both parties against risk.

When bidding for Groupon late last year, Google tried to hedge against uncertainty regarding the Internet deal company’s future performance by structuring a high percentage of its $6 billion offer as “earn-outs”—payments Groupon would receive only if it hit certain performance targets. Ultimately, this contingency was insufficient to bridge the gap between the two companies when Groupon balked over possible antitrust delays.

Mergers and Acquisitions Negotiations and Contingency Contracts

Here’s another recent high-profile mergers and acquisitions (M&A) negotiation you may have read about. In October 2010, the Paris-based international pharmaceutical company Sanofi-Aventis SA made an $18.5 billion, $69-per-share takeover bid for the American biotechnology company Genzyme Corp.

Sanofi was hoping to boost revenues, as patents on some of its key products were expiring. Genzyme shunned the offer, saying it was too low, and refused to open its books to Sanofi.

In particular, Genzyme felt Sanofi was undervaluing its star pipeline product, a potential multiple sclerosis (MS) drug. Based on an encouraging midstage research trial, Genzyme predicted that Campath, originally a leukemia drug, would capture one-quarter of the $13 billion global MS market. By contrast, Sanofi estimated the drug would sell about $700 million annually, the Wall Street Journal reports.

The differing predictions set the stage for a contingent contract in which Sanofi and Genzyme could bet on Campath’s success in the MS market. Breaking months of impasse, financial advisers for both companies began to negotiate contingent value rights (CVR) that would give shareholders an added benefit if Genzyme hit a future benchmark tied to sales of Campath.

By late December, after unsuccessfully shopping itself to other pharmaceutical firms, Genzyme reportedly was warming to Sanofi’s bid. At this writing, analysts were predicting that Sanofi would raise its bid to about $75 per share. If talks ultimately fail, Sanofi has threatened to pursue a hostile takeover by attempting to replace Genzyme’s board with members who are more friendly to its offer.

When two parties legitimately disagree about future outcomes that affect their deal, they should be willing to bet on their beliefs by negotiating a contingent contract.

Contingency contracts are common in M&A, professional athletics, and building projects. But negotiators in many other realms could benefit from betting on their differing predictions by structuring incentives and penalties rather than resorting to persuasion techniques that have low odds of success.

Have you ever had to Agree to Disagree? Let us know in the comments.

Negotiation Skills

Claim your FREE copy: Negotiation Skills

Build powerful negotiation skills and become a better dealmaker and leader. Download our FREE special report, Negotiation Skills: Negotiation Strategies and Negotiation Techniques to Help You Become a Better Negotiator, from the Program on Negotiation at Harvard Law School.


Adapted from “Agreeing to Disagree,” first published in the March 2011 issue of Negotiation.

Originally published in 2013.

Program on Negotiation to honor Ambassador Tommy Koh as 2014 Great Negotiator

The Program on Negotiation at Harvard Law School
and the Future of Diplomacy Project at Harvard Kennedy School

are pleased to present

The 2014 Great Negotiator Award Program

honoring

Ambassador Tommy Koh

Thursday, April 10, 2014
1:30 – 5:00 PM
Ames Courtroom, Austin Hall, Harvard Law School

The event is free and open to the public. No registration is necessary. Refreshments will be served.

Program Details:

1:30 – 3:00 PM – Multiparty Deals: The Law of the Sea, the Rio Earth Summit, and the Future of Large Conference Negotiations

Panelists:  Professor James Sebenius, Harvard Business School & Susan Hackley, Managing Director, Program on Negotiation

3:00 – 3:30 P.M.- Break & Refreshments

3:30 – 5:00 P.M.- Bilateral Deals: Trade and Regional Conflicts

Panelists: Professor Nicholas Burns, Harvard Kennedy School & Professor James Sebenius, Harvard Business School

 

We invite you to join us Thursday, April 10th,  for a conversation with Ambassador Tommy Koh of Singapore, the recipient of the 2014 Great Negotiator Award. This public program will feature panel discussions with Ambassador Koh and faculty from the Program on Negotiation and the Future of Diplomacy Project.

Ambassador Koh is the eleventh recipient of the Great Negotiator Award, awarded jointly in 2014 by the Program on Negotiation at Harvard Law School and the Future of Diplomacy Project at Harvard Kennedy School. The award recognizes Ambassador Koh for his work as chief negotiator for the United States-Singapore Free Trade Agreement, for chairing the negotiations that produced a charter for the Association of Southeast Asian Nations (ASEAN), for key actions that resolved territorial and humanitarian disputes in the Baltics and Asia, and for successfully leading two unprecedented global megaconferences: the Third U.N. Conference on the Law of the Sea and the U.N. Conference on the Environment and Development, also known as the Rio Earth Summit.

A graduate of Harvard Law School as well as the Universities of Malaya and Cambridge, Ambassador Tommy Koh served as Singapore’s Permanent Representative to the United Nations for a decade, and for six years as Singapore’s Ambassador to the United States. He is currently Ambassador-At-Large at the Ministry of Foreign Affairs for Singapore and Chairman for the Centre for International Law at the National University of Singapore.

To read more about Ambassador Koh’s background and accomplishments, click here for a paper by Professor James K. Sebenius and Laurence A. Green.

For additional information or questions, contact Polly Hamlen at mhamlen@law.harvard.edu or (617) 496-9383.

About the Awardee:

Ambassador Tommy Koh is currently the Ambassador-At-Large at the Ministry of Foreign Affairs for Singapore; Director, Institute of Policy Studies; and Chairman of the National Heritage Board. He is also Chairman of the Chinese Heritage Centre.

Ambassador Koh was the Dean of the Faculty of Law of the University of Singapore from 1971 to 1974. He was Singapore’s Permanent Representative to the United Nations, New York, from 1968 to 1971 (concurrently accredited as High Commissioner to Canada) and again from 1974 to 1984 (concurrently accredited as High Commissioner to Canada and Ambassador to Mexico). He was Ambassador to the United States of America from 1984 to 1990. He was President of the Third UN Conference on the Law of the Sea from 1980 to 1982. He was Chairman of the Preparatory Committee and the Main Committee of the UN Conference on Environment and Development from 1990 to 1992. He was the founding Chairman of the National Arts Council from 1991 to 1996 and Director of the Institute of Policy Studies from 1990 to February 1997. From February 1997 to October 2000, he served as the founding Executive Director of the Asia-Europe Foundation. He was also Singapore’s Chief Negotiator for the US-Singapore Free Trade Agreement.

Ambassador Koh was appointed by the United Nations Secretary-General as his Special Envoy to lead a mission to the Russian Federation, Latvia, Lithuania, and Estonia in August/September 1993. He was also a member of three WTO dispute panels, for two of which he served as Chair.

Ambassador Koh was the Second Arthur & Frank Payne Visiting Professor at the Institute for International Studies, Stanford University, USA, for 1994/95. He is a visiting Professor at Zhejiang University. He serves on the Board of Directors of the Institute for the Study of Diplomacy at Georgetown University. He is a member of the International Council of The Asia Society (New York) and a co-convener of its Williamsburg Conference. He is also a member of the International Advisory Committees of the Korean Federation of Industries.

Ambassador Koh received a First Class Honours degree in Law from the National University of Singapore, has a Masters degree in Law from Harvard Law School, and a post-graduate Diploma in Criminology from Cambridge University. He was conferred a full professorship in 1977. In 1984, he was awarded an Honorary Degree of Doctor of Laws from Yale University. He has also received awards from Columbia University, Stanford University, Georgetown University, the Fletcher School of Law and Diplomacy, and Curtin University. On 22 September 2002, Ambassador Koh was conferred an Honorary Degree of Doctor of Laws from Monash University.

For his service to the nation, Ambassador Koh was awarded the Public Service Star in 1971, the Meritorious Service Medal in 1979 and the Distinguished Service Order Award in 1990. Ambassador Koh was appointed Commander in the Order of the Golden Ark by HRH Prince Bernhard of the Netherlands in March 1993. He received the award of the Grand Cross of the Order of Bernardo O’Higgins from the Government of Chile on 3 April 1997. He also received the 1996 Elizabeth Haub Prize from the University of Brussels and the International Council on Environmental Law on 17 April 1997. He was awarded the 1998 Fok Ying Tung Southeast Asia Prize by the Fok Ying Tung Foundation in Hong Kong on 29 May 1998. On 22 February 2000, he was awarded the “Commander, First Class, of the Order of the Lion of Finland” by the President of Finland. On 2 May 2000, he was conferred the title of “Grand Officer in the Order of Merit of the Grand Duchy of Luxembourg” by the Prime Minister of Luxembourg. On 6 August 2001, he was conferred the rank of Officer in the Order of the Legion of Honour by the President of the French Republic. On 5 May 2003, he was awarded the Peace and Commerce Medal by the Department of Commerce, USA.

 

The Program on Negotiation at Harvard Law School: Three Decades of Scholarship and Practice

Founded in 1983, the Program on Negotiation at Harvard Law School is a pioneer in the fields of negotiation, mediation, and alternative dispute resolution.

In commemoration of the program’s 30th anniversary this year, the Program on Negotiation is proud to present a video describing many of PON’s various educational and research activities.

According to Chair Robert Mnookin, at its core the Program on Negotiation is devoted to improving the theory and practice of negotiation and dispute resolution.

PON is also dedicated to educating, training, and fostering future scholars, students, and practitioners of negotiation and alternative dispute resolution (ADR).

Program on Negotiation Chair Robert Mnookin explains that while conflict is inevitable, a fair resolution of such conflict isn’t always a foregone conclusion.

Because conflict is prevalent in human society, the skills and knowledge obtained through the research and instruction provided by the Program on Negotiation have been instrumental in changing how many people think about and approach conflict.

In addition to its academic activities, each year the Program on Negotiation honors an accomplished negotiator for his or her achievements in the field of negotiation and alternative dispute resolution with the Great Negotiator Award.

Professor James Sebenius highlights the diversity of conflicts negotiated by the Great Negotiator Award winners. For example, PON honored George Mitchell’s work leading negotiations between Northern Ireland’s Catholics and Protestants and former Secretary of State James Baker‘s work forming the Gulf War Coalition.

Program on Negotiation faculty member Gabriella Blum describes the Program on Negotiation’s unique approach to conflict resolution as the need for integrative bargaining (win-win) solutions rather than solely distributive bargaining (win-lose) solutions.

What this means is that it is important to keep in mind that negotiation is rarely a zero-sum game; rather, it is a process of collaboration and relationship building in areas of mutual interest.

Tufts University Fletcher School of Diplomacy and PON faculty member Jeswald Salacuse and Massachusetts Institute of Technology (MIT) professor Lawrence Susskind describe the history of collaboration between Tufts, Harvard, and MIT and the unique opportunities  that such an arrangement affords a research program like PON.

In addition to instructing students at Harvard, Tufts, and MIT, the Program on Negotiation also offers executive education courses geared toward training professionals who either currently work in the field of alternative dispute resolution (ADR) or who utilize negotiation as a regular part of their job.

Professor Mnookin highlights that we live in an increasingly interconnected world and that it is essential for us all to learn how to navigate conflict and work with others to achieve a successful resolution:

In the 21st century, what is plain is that peoples all over the world are ever more independent. It is going to be essential that we know how to communicate with and resolve our differences with people who are very different from ourselves. We are no longer isolated. And in fact, in this world, I think the work of conflict resolution and dealing with people fairly and efficiently becomes even more important.

Smiling young Indian female job seeker shaking hands with Caucasian hr manager, starting interview meeting or accepting offer proposal, making good first impression talking in modern office room.

When to Make the First Offer in Negotiations

If you’re wondering whether and when to make the first offer in negotiations, a new study synthesizes past research and offers helpful guidance.

Should you make the first offer in your negotiations? If so, how aggressive should it be? These are critical questions in negotiation, ones that have been repeatedly examined in negotiation research and teaching. The findings and advice have varied, however, leaving negotiation practitioners uncertain about how to proceed.

In a new study, a team of 15 researchers, led by Leuphana University of Lüneburg, Germany, Professor Hannes M. Petrowsky, conducted a meta-analysis of 90 previous studies that examined the question of whether and when to make the first offer in negotiations. Their findings offer more definitive guidance on this age-old question.

Negotiation Skills

Claim your FREE copy: Negotiation Skills

Build powerful negotiation skills and become a better dealmaker and leader. Download our FREE special report, Negotiation Skills: Negotiation Strategies and Negotiation Techniques to Help You Become a Better Negotiator, from the Program on Negotiation at Harvard Law School.


Should You Make the First Offer?

Let’s start by looking at past views on when to make the first offer in negotiations.
According to one perspective, you should rarely or never make the first offer in negotiation. Doing so risks revealing too much information early on about your flexibility and alternatives, this thinking goes. Choosing instead to wait for the other side’s offer could give you important information that you could use to both claim and create value in your negotiation.

By contrast, many studies on anchoring in negotiation have found that the party that makes the first offer gets the best results. That’s because the first offer serves as an anchor that powerfully sways subsequent proposals and offers in its direction.

Another open question is how aggressive your offer should be. Based on their research findings, Columbia Business School Professor Adam Galinsky and others have recommended not only making the first offer in negotiation but also making an aggressive first offer to take advantage of the anchoring effect.

By contrast, in his recent book, Negotiation: The Game Has Changed, Harvard Business School Professor Max Bazerman argues the potential benefits of an aggressive first offer could be overshadowed by the risk that it will increase the odds of impasse. Bazerman notes that past research on when to make the first offer in negotiations has sometimes excluded the results of negotiation simulations that end in impasse, thus skewing the results. Moreover, he points out that participants in research studies may be more motivated to reach agreement than negotiators in the real world.

Factoring In Impasse and Negotiator Satisfaction

In their meta-analysis of past studies on first offers in negotiation, Petrowsky and his research team accounted for these concerns by looking at not only agreement value, or the amount of value claimed in negotiations, but also the rate of impasse and subjective value, or how satisfied negotiators were with their outcomes. They reasoned that even if negotiators objectively got a great deal, an overly ambitious opening offer could sour the relationship and leave the other party dissatisfied.

The team found “substantial positive effects of first offers for agreement value, with making the first offer and making it ambitiously leading to economic gains for the offer maker.”

However, ambitious first offers did indeed increase the odds of impasse. In addition, negotiators were less satisfied with their final agreement when their counterpart made an ambitious (versus moderate) first offer. These effects were stronger for less complex negotiations, such as one-off negotiations involving a single issue or small number of issues. The researchers corroborated the findings from their meta-analysis in two experiments.

When to Make the First Offer

So, what do the results tell us about when to make the first offer in negotiations? Overall, the results “paint a more nuanced picture of first-offer effects than has emerged before,” according to the authors, “challenging prior suggestions to ‘go first and go ambitious.’” While making the first offer tends to lead to better results for oneself, doing so also increases the risk of an impasse and of harming the relationship with one’s counterpart.

While cautioning that every negotiation is different, the authors offer advice to those who manage negotiators. In simple, distributive, onetime negotiations, they write, “Advising procurement or sales to move first and to do so ambitiously should yield significant economic gains.” But they caution: “When negotiations structures are complex and integrative, or when relational outcomes are paramount, waiting for the other party to move first or making more modest first offers might deserve consideration in the interest of preventing relational losses and non-agreements.”

In addition, another rule of thumb may prove helpful. If you appear to know more about the zone of possible agreement (ZOPA) than your counterpart, you should feel more confident dropping the first anchor than if they are the more informed party. For example, in a job negotiation, the recruiter generally knows more about the ZOPA—that is, how much they can offer, in terms of salary and benefits—than the candidate does. As a result, candidates are usually wise to wait for a first offer, lest they ask for too much or too little.

Question: What other advice do you have on when to make the first offer in negotiations, based on your own experience?

negotiation preparation

Use a Negotiation Preparation Worksheet for Continuous Improvement

Improve your negotiation training with a negotiation preparation worksheet and track your progress improving your skills

Negotiation preparation is as much an organizational responsibility as it is an individual practice. Effective planning requires more than personal analysis and intuition. For example, when assessing their best alternative to a negotiated agreement, or BATNA (the point at which negotiators should be prepared to walk away), executives benefit from consulting key organizational leaders. These conversations ensure that the proposed strategy aligns with broader priorities, reflects internal realities, and carries the full support of those whose decisions and resources may ultimately shape the outcome.

Negotiation Skills

Claim your FREE copy: Negotiation Skills

Build powerful negotiation skills and become a better dealmaker and leader. Download our FREE special report, Negotiation Skills: Negotiation Strategies and Negotiation Techniques to Help You Become a Better Negotiator, from the Program on Negotiation at Harvard Law School.


Improve Your Negotiating Ability by Monitoring Your Progress

If senior managers are unwilling to invest time in such a conversation – or if they offer less-than-helpful advice such as, “Whatever you do, don’t lose that account!” – an executive can’t be held responsible for poor preparation. Indeed, approaching the bargaining table with a prepared list of best alternatives to a negotiated agreement, an outline of your best estimation of your counterpart’s interests, and a general framework for dialogue improves the chances that each side will reach a mutually beneficial agreement. What can a negotiator do to overcome, or even prevent, this problem from emerging at the bargaining table?

The solution: Develop a negotiation preparation worksheet that will engage the entire organization in the necessary preparation and gauge executive performance after the fact. A preparation worksheet not only obligates a negotiator to account for all the factors that ought to be included in a negotiation strategy, but it also requires high-level sign-offs on all relevant estimates. In this manner, a concrete basis for performance reviews becomes available once the negotiation ends; negotiators and their supporters can check intentions against results.

Keep in mind that you should link bonuses and other rewards not just to negotiation outcomes but to outcomes in light of initial expectations. That is, review agreements in light of the value created above the best alternative to a negotiated agreement (BATNA) agreed upon before the bargaining session began. By establishing metrics for quantitatively measuring performance, negotiating teams can address deficiencies in a focused manner and tailor their training towards that end.

What is on your negotiation preparation checklist? Let us know in the comments below.

Negotiation Skills

Claim your FREE copy: Negotiation Skills

Build powerful negotiation skills and become a better dealmaker and leader. Download our FREE special report, Negotiation Skills: Negotiation Strategies and Negotiation Techniques to Help You Become a Better Negotiator, from the Program on Negotiation at Harvard Law School.


Related Negotiation Training Articles:
Negotiating for Continuous Improvement: Offer Ongoing Negotiation Coaching – How continual negotiation training can transform the lackluster negotiator into a bargaining super hero.

Techniques for Improving Your Negotiating Ability – How to effectively monitor your negotiation performance in order to improve future bargaining outcomes.

Negotiating for Continuous Improvement: Report Negotiation Results Internally– How to establish an organization negotiation training regimen with quantitative measurements geared towards improving individual negotiator’s negotiation skills.

Originally published in 2014.

win lose negotiations

Win-Lose Negotiation Examples

Win-Lose Negotiation examples are easy to find in the news, but that doesn’t mean you should imitate a competitive approach. Much more often, win-win negotiations are within reach.

When we think of win-lose negotiation examples, we often imagine situations where one side’s success seemed to require the other side’s failure. Yet in many of these cases, a win-win negotiation was entirely within reach. Too often, parties overlook opportunities to create value, and they end up with agreements that fall short of their potential. The following two win-lose negotiation examples show why negotiators so frequently default to competition rather than collaboration, to their own detriment, and how you can adopt more effective negotiation strategies that open the door to stronger, more mutually beneficial outcomes.

Amazon’s Win-Lose Auction for HQ2

Back in 2017, 238 North American cities and regions placed bids to be site of Amazon’s second headquarters, known as HQ2. The online behemoth said it would be investing $5 billion in the campus, which was expected to create 50,000 well-paying jobs. Amazon’s wish list for its winning city or region included a metropolitan area of more than one million people, a “stable and business-friendly environment,” access to strong technical talent, and a community that thinks “big and creatively,” according to CNBC.

Negotiation Skills

Claim your FREE copy: Negotiation Skills

Build powerful negotiation skills and become a better dealmaker and leader. Download our FREE special report, Negotiation Skills: Negotiation Strategies and Negotiation Techniques to Help You Become a Better Negotiator, from the Program on Negotiation at Harvard Law School.


Some critics complained about Amazon’s request that applicants include information about tax breaks and other corporate incentives in their proposal. The implication: Cities would have to pay up to get the company’s attention. Matthew Gardner, a senior fellow at the nonpartisan Institute on Taxation and Economic Policy, told the New York Times, “[Amazon] would like a package of tax incentives for something they were going to do anyway.” University of Minnesota economist Art Rolnick called Amazon’s requests “blackmail” and “corporate welfare,” but conceded that cities had little choice but to enter the race.

Regular participants in auctions are familiar with the winner’s curse phenomenon, or the common tendency for the winning bidder in an auction for an item of uncertain value to overpay. When an auction heats up, the fact that you are the winner suggests that others reached more realistic assessments of the item’s true value.

The winner’s curse is likely to be a concern whenever you are asked to participate in an auction that appears to be centered solely on price. In such instances, you might try to convince the seller to negotiate with you one on one. Explain that you have much more value to offer than can be communicated in a single price offer and that you believe they can achieve a great deal more through win-win bargaining.

The Florida Marlins Sale

The fallout from a disadvantageous negotiation can reverberate for years to come. That’s what the City of Miami learned from its 2009 stadium deal with Florida Marlins owner Jeffrey Loria as he reached an agreement to sell the team in August 2017.

With the Marlins struggling for years to fill their stadium, Loria threatened to relocate the team to another city unless city leaders agreed to provide taxpayer financing for a new stadium with a retractable roof. Ultimately, City of Miami and Miami-Dade County taxpayers paid about 75% of the $634 million construction costs for the 37,000-seat stadium. The team itself paid just $125 million and keep almost all the revenue generated from the building. Loria agreed that if he sold the team within 11 years, he would pay the city a percentage of the sale according to sliding scale.

Opened in 2012, the new Marlins Park substantially enhanced the value of the team, but ticket sales remained stagnant and the team struggled on the field. Moreover, the burden the stadium placed on taxpayers turned out to be far worse than anticipated: a whopping $2.4 billion over 40 years, according to the Broward County Sun-Sentinel. A Securities and Exchange Commission investigation of the deal followed but ultimately was closed.

On August 11, 2017, the Miami Herald broke the news that Loria had reached an agreement to sell the Marlins to a buyers’ group led by Yankees star Derek Jeter and venture capitalist Bruce Sherman for $1.17 billion. How much of that $1.17 billion would local governments receive to help pay down the billions in taxpayer funds they invested in Marlins Park? Likely just a few million dollars.

In the business world, one negotiation often leads to another. Before negotiating, it’s important to think through the long-term implications of deal terms. Analyze the various scenarios that could play out, and then prepare for both the best- and the worst-case scenario—lest you end up on the wrong end of a win-lose negotiation.

What other win-lose negotiation examples have you encountered, and how might they be transformed to win-win deals?

Negotiation Skills

Claim your FREE copy: Negotiation Skills

Build powerful negotiation skills and become a better dealmaker and leader. Download our FREE special report, Negotiation Skills: Negotiation Strategies and Negotiation Techniques to Help You Become a Better Negotiator, from the Program on Negotiation at Harvard Law School.


leadership and communication

The Inseparable Link Between Effective Leadership and Communication

Effective leadership and communication go hand in hand, especially when it comes to negotiating a leadership role.

In 1994, the Walt Disney Company faced an unforeseen test of leadership and communication after its president and COO, Frank Wells, died in a helicopter crash. In the aftermath, Disney chairman and CEO Michael Eisner believed that his longtime friend Michael Ovitz—founder and majority owner of the powerhouse Hollywood talent agency Creative Artists Agency, or CAA—was the ideal candidate to step into the role of president.

At CAA, Ovitz was earning $20 to $25 million per year, far more than Disney had paid Wells—and, indeed, more than any CEO in the United States was earning at the time. But to land him, Eisner felt compelled to match Ovitz’s current salary. After discussions with the chair of the Disney board’s compensation committee, Eisner agreed to pay Ovitz $24.1 million per year. Ovitz also negotiated a potentially lucrative termination clause in the event he was fired without cause within five years.

But when Eisner told Disney’s two other senior-most executives that he was hiring Ovitz, they both said outright that they would not report to Ovitz. According to the executives, Ovitz would be a bad fit with Disney. Nonetheless, Eisner pushed ahead with his decision and secured the unanimous approval of Disney’s board.

Negotiation Skills

Claim your FREE copy: Negotiation Skills

Build powerful negotiation skills and become a better dealmaker and leader. Download our FREE special report, Negotiation Skills: Negotiation Strategies and Negotiation Techniques to Help You Become a Better Negotiator, from the Program on Negotiation at Harvard Law School.


The hiring proved disastrous. Ovitz had expected that he and Eisner would co-lead Disney, but Eisner and other top Disney executives believed that Eisner should remain in full control. In the wake of the resulting turmoil, Eisner felt compelled to dismiss Ovitz after just 14 months on the job. Despite the short stay at Disney, Ovitz walked away with severance payments of $38 million in cash and about $100 million in Disney stock options, an astounding figure that triggered a shareholder lawsuit that took 10 years and many more millions to litigate.

In Ovitz’s agreement with Disney, what went wrong? He thoroughly negotiated the terms of his employment with Eisner but failed to negotiate the role he would play within the organization.

The vital link between leadership and communication skills

We tend to think of leaders as people who seldom need to negotiate. According to popular belief, their position of power enables leaders to issue directives without discussion, spend more time talking than listening, and easily tamp down troublesome conflict.

Nothing could be further from the truth, writes Tufts University professor Jeswald Salacuse in his book Real Leaders Negotiate! Gaining, Using, and Keeping the Power to Lead Through Negotiation (Palgrave Macmillan, 2017). Whether a leader is a CEO, department head, or manager on the night shift, she will find it necessary to negotiate constantly to lead other people. Leaders not only negotiate often but also have to negotiate to achieve their goals, according to Salacuse. And to do so, they must draw on leadership and communication skills not normally associated with a top-down style, such as listening closely, collaborating, and making concessions.

The primary tasks of leadership— including setting a direction, creating a team, managing conflict, and motivating others—all require strong negotiating skills, writes Salacuse. And to become effective leaders in the first place, we need to negotiate a compelling role for ourselves within the organization.

We negotiate our roles not only during the hiring process but also with our coworkers throughout the length of our tenure.

Every leader faces two distinct negotiations

Whether you are applying for a leadership position with a new company or seeking to move up in your current organization, you will face two significant negotiations: one for your position and one for your role, writes Salacuse in Real Leaders Negotiate!

The process of negotiating your position includes discussing and agreeing on your title and responsibilities, determining how much power you will have, bargaining over pay and benefits, and so on, with those who have the authority to appoint you. Although such negotiations can continue after you’re on the job, you will agree on most of the terms before your first day of work. Eisner and Ovitz appear to have spent ample time negotiating the financial terms of Ovitz’s position at Disney, for example.

By contrast, negotiating your role involves reaching agreement with many others in the organization on the functions, priorities, and limitations of your job. We negotiate our roles not only during the hiring process but also with our coworkers throughout the length of our tenure. We do so by discussing any concerns they have about our abilities and qualifications, listening to their hopes and fears for the organization, and working with them to set the scope of our duties.

Leaders often focus so much on negotiating their positions that they neglect to adequately negotiate their roles, according to Salacuse. Ovitz was very successful at negotiating high compensation, but he failed to negotiate the role he would play as Disney’s president. A failure to negotiate those differences led to an untenable situation.

On stage with leadership and communication skills

How can we effectively negotiate our leadership roles? Salacuse finds guidance in “role theory,” a school of thought from the social sciences. Drawing on theatrical metaphors, role theory assumes that our behavior is influenced by our social roles, just as stage actors act according to their roles in a play. The expectations that others have of us, and our own expectations of ourselves, in turn determine our social roles.

The role that a leader chooses to play is influenced by the expectations of those who hired her and her followers, as well as her expectations for herself. Conflict can arise when those expectations vary from one group to the next, as happened with Ovitz at Disney. By negotiating our role, we can better align expectations and head off conflict.

Salacuse recalls how he negotiated a new role when he was being considered for the position of dean at Tufts’ Fletcher School of Law and Diplomacy in the 1980s. During visits to the school, Salacuse asked the various people he met with, including students and high-ranking university officials, to share any concerns they had about the school. Many constituents shared the view that the school was resting on its laurels. In particular, the university provost told Salacuse that he was being recruited specifically to strengthen the caliber of the school’s faculty.

Consequently, upon taking the position of dean, Salacuse broke from his predecessors, who had been former U.S. ambassadors rather than academics, by becoming actively involved in the hiring and promotion of the school’s teachers and scholars. In one case, after consulting with a review committee, Salacuse decided not to renew the contract of a young instructor who was the protégé of a senior faculty member known for being territorial and combative. As part of a campaign to have the decision reversed, the faculty member sought to convince students that Salacuse had acted arbitrarily and beyond his authority as dean.

Salacuse held an open meeting for students at which he explained the decision and responded to questions for more than two hours. By taking time to answer questions openly and honestly, Salacuse convinced the students that he had acted appropriately and within his role, and the controversy dissipated. During his eight-year tenure as dean, Salacuse oversaw the turnover of 70% of the Fletcher School’s faculty and achieved his goal of rebuilding the caliber of the school. By negotiating the scope of his role both before being hired and on the job, Salacuse used both leadership and communication to achieve his goals as well as the school’s.

5 guidelines for negotiating your leadership role

In Real Leaders Negotiate! Salacuse gives the following advice for leaders looking to set themselves up for success:
1. Don’t over-rely on your job description.
It’s too easy to jump to incorrect assumptions about how you should behave on the job based on your understanding of the position’s requirements. You should not assume that the functions and tasks you feel called to carry out as leader align with how those you are to lead view your position. Instead, prepare to negotiate your role with constituents both within and outside the organization.
2. Consider the expectations set by your predecessors.
When negotiating a new business deal, we often start with a clean slate—but this is usually not the case when negotiating a leadership role. Your counterparts will have certain expectations of how you should carry out your role based on the habits and precedents of those who filled the job before you. It’s crucial to understand those expectations. If you want to go in a different direction, you will need to develop a leadership and communication strategy to shift others’ expectations.
3. Assess constituents’ level of support.
As you plan your role-negotiation campaign, identify the various constituents involved to determine who supports you already and whom you will need to persuade to come on board. This support will be critical to your ability to pursue your goals. Don’t allow yourself to become isolated and alone in the organization, as Ovitz appeared to do.
4. Negotiate your role constantly.
It would be a mistake to view negotiation of your leadership role as a one-off deal that can be concluded a month or two into your tenure. In fact, the best leaders continually negotiate their roles, working to understand and adjust others’ expectations as they set new initiatives and goals. Just as diplomats tend and cultivate their relationships with other nations, writes Salacuse, leaders of all types need to strive to stay connected to their constituents, both within and outside the organization.
5. Prepare for changes in scope.
Your own actions and those of others may cause the nature and scope of your leadership and communication to change over time. It’s often the case that organizations give successful leaders increased autonomy as time goes on. But if decisions you make turn out poorly, don’t be surprised if your superiors place new limitations on your role. Stay attuned to those shifts and continue to negotiate your level of freedom.

What communication issues have you faced in a leadership role and how did you solve them?

Negotiation Skills

Claim your FREE copy: Negotiation Skills

Build powerful negotiation skills and become a better dealmaker and leader. Download our FREE special report, Negotiation Skills: Negotiation Strategies and Negotiation Techniques to Help You Become a Better Negotiator, from the Program on Negotiation at Harvard Law School.


batna

Know Your BATNA: The Power of Information in Negotiation

Three BATNA tips you can use in your next bargaining session

Knowing when to walk away in a negotiation is one of the most powerful forms of information a negotiator can bring to the bargaining table, and it begins with understanding her BATNA or best alternative to a negotiated agreement. In 2011, during 18 months of top-secret talks with Iran over its nuclear program, U.S. State Department Under Secretary for Political Affairs Wendy Sherman faced this challenge firsthand. She often felt as though she were negotiating through a dark screen. Instead of meeting directly with Iran’s supreme leader, Ali Khamenei, Sherman and the U.S. delegation were directed to work through Iran’s American-educated foreign minister, Mohammad Javad Zarif, according to the New York Times.

During the course of the discussions, it remained unclear exactly how much negotiating authority Zarif possessed, if any. “We are only going to find out by testing him,” Sherman said. She found the drawn-out process of “signal-sending” with Iran frustrating, the Times reports.

Most of us have had the experience of doubting a counterpart’s ability to make decisions on behalf of his organization. Fortunately, business negotiators typically have more options than Sherman did to improve the situation. Here are three negotiation skills tips you can use in your next bargaining session:

Negotiation Skills

Claim your FREE copy: Negotiation Skills

Build powerful negotiation skills and become a better dealmaker and leader. Download our FREE special report, Negotiation Skills: Negotiation Strategies and Negotiation Techniques to Help You Become a Better Negotiator, from the Program on Negotiation at Harvard Law School.


1. Clarify your negotiating counterpart’s authority.

Before you negotiate, ask your counterpart (and her superiors if necessary) to clarify the extent to which she is empowered as an agent in negotiation to make proposals and commitments on behalf of her organization. Though negotiators often must clear significant decisions with their higher-ups, your counterpart should at least know the subject matter of the negotiations well enough to be able to make provisional commitments. Be willing to reveal your own negotiating mandate in return (see also, power in negotiations).

2. Consider adding negotiators.

Before or during the bargaining process, it may become apparent that your counterpart was appointed not because of his qualifications but because of his lack of them—that is, out of a deliberate intention to obfuscate or mislead. If you believe this to be the case, ask to bring in someone who has more relevant expertise and greater decision-making authority.

3. Know when to walk away – Know your BATNA.

Suppose your efforts to bring a more knowledgeable negotiator to the table fail. At this point, it may be time to consider your best alternative to a negotiated agreement, or BATNA—specifically, you might want to consider dealing with a different organization. What if you are unable to cultivate good outside alternatives to further your objectives? Try to build relationships with others in your counterpart’s organization with the goal of working around the obstacle and building a coalition that will support your proposals.

When was the last time that you had to use your BATNA? Share your experience in the comments.

Negotiation Skills

Claim your FREE copy: Negotiation Skills

Build powerful negotiation skills and become a better dealmaker and leader. Download our FREE special report, Negotiation Skills: Negotiation Strategies and Negotiation Techniques to Help You Become a Better Negotiator, from the Program on Negotiation at Harvard Law School.


Reprinted from the March 2014 issue of the Negotiation Briefings newsletter.

Originally published in 2014.

negotiation

Negotiation Research on Mediation Techniques: Focus on Interests

Negotiation and mediation research favors a mediator’s focus on client interests

There is often a better path to resolving your dispute: hiring an expert mediator who can help both sides move beyond rigid positions and focus on underlying interests—the needs, desires, and concerns that shape each party’s viewpoint. Negotiation research on mediation techniques shows that when a mediator guides participants toward uncovering these deeper interests, they are far more likely to find creative options, reduce tensions, and reach agreements that truly meet everyone’s needs.

During the course of negotiation dispute resolution, if someone is asked why a dispute is important, normally the answer will reveal her interests.

A Simple Negotiation Example

As a simple illustration, imagine that two administrative assistants with adjoining desks disagree about whether the window behind them should be open or closed.

One claims that she has the right to decide because she has seniority, while the other insists he should get his way because he conceded to the colleague in a disagreement about lighting.

The office manager asks both to explain their preferences.

The senior employee says that the draft from the open window gives her allergies. Her colleague says that without the fresh air, he gets sleepy.

Suddenly, agreement is easy: the office manager opens a window in the adjoining storeroom, and the two assistants have fresh air with no draft.

Acting as an interests-based mediator, the office manager probed for the interests underlying the assistants’ positions. When the positions of the disputing parties cannot be reconciled, a focus on interests will often lead to a mutually satisfactory outcome.

Dispute Resolution and Conflict Management in Business Negotiation – Focus on Interests?

But can a focus on interests be applied to complex business disputes?

From experience, we know that a skilled mediator can often resolve conflicts even when she knows little or nothing about the underlying technical issues behind the most complex disputes.

Why?

In the first place, a good interests-based mediator will be a fast learner, capable of quickly picking up the technical mediation knowledge necessary to discuss the problem.

More importantly, an interests-based mediator doesn’t need to fully understand the technical aspects of a problem to assess why the dispute is important to each party and which solutions each party might accept.

By beginning with this knowledge and eventually exchanging negotiated agreement proposals, the interests-based mediator can help parties resolve the most complex technical problems.

What mediation techniques have you tried during a negotiation? Share your negotiation mediation stories in the comments.

Related Mediation Article: Deciding on Arbitration versus Mediation? Try Combining Them

How Your Organization Can Benefit from Mediation Techniques

Negotiation Skills

Claim your FREE copy: Negotiation Skills

Build powerful negotiation skills and become a better dealmaker and leader. Download our FREE special report, Negotiation Skills: Negotiation Strategies and Negotiation Techniques to Help You Become a Better Negotiator, from the Program on Negotiation at Harvard Law School.


Adapted from “Beyond Blame: Choosing A Mediator” by Stephen Goldberg for the January 2006 issue of the Negotiation newsletter.

Originally published in 2013.

value claiming - value conflict

Value Conflict: What It Is and How to Resolve It

A value conflict over sacred issues can be one of the most difficult challenges to overcome in negotiation and conflict resolution. Research on value conflict offers strategies for moving beyond entrenched positions.

Some of our most heated negotiations and disputes stem from value conflict tied to our deepest convictions—our personal moral standards, our religious and political beliefs, and our family’s welfare. Because these issues touch on who we are and what we stand for, they can quickly elevate tensions and make compromise feel especially challenging. Understanding the nature of value conflict is an important first step toward navigating these emotionally charged negotiations more thoughtfully and effectively.

Consider these value conflict examples:

  • Business partners clash over the ethical standards they expect each other to uphold.
  • A negotiator refuses to do business with a potential counterpart she deems unsavory on moral grounds.
  • Parents bar their teenager from attending an event they think might be dangerous.

These types of value conflict, which highlight our norms, beliefs, and identities, can be incredibly difficult to resolve. When our most deeply held beliefs and principles are at stake, we often ratchet up value conflict out of a desire to be heard, refuse to make any concession that would appear to compromise our values, or categorically refuse to negotiate. Drawing on new research, we present three strategies for negotiating value-based conflict.

Negotiation Skills

Claim your FREE copy: Negotiation Skills

Build powerful negotiation skills and become a better dealmaker and leader. Download our FREE special report, Negotiation Skills: Negotiation Strategies and Negotiation Techniques to Help You Become a Better Negotiator, from the Program on Negotiation at Harvard Law School.


1. Assess Whether the Value Is Truly Sacred

Value conflict often arises because one or more of the parties involved consider a value to be sacred and nonnegotiable. In some cases, our values truly are sacred and not open to compromise. In other situations, however, our values turn out to be “pseudo-sacred”—that is, we are willing to negotiate them under certain conditions, notes Harvard Business School professor Max H. Bazerman.

For example, in one study, negotiators with little power were more likely to compromise on a seemingly sacred issue than were negotiators with greater power, Notre Dame University professor Ann E. Tenbrunsel and her colleagues found in their research. A lack of alternatives led low-power negotiators to become more flexible.

Before refusing to budge on an issue you deem sacred, try to envision an outcome that would allow you to abide by the spirit of your values even as you make concessions on the specifics. Similarly, if a counterpart insists a particular issue is sacred, you might make a proposal that honors their values while also bringing you closer to agreement.

This doesn’t mean putting price tags on your most cherished beliefs; rather, it means thinking creatively about how to meet broader goals. Imagine, for example, that you adamantly oppose your sibling’s intention to sell some of your late parents’ possessions. But what if you donated your share of the proceeds from the sale to a charity your parents supported? You might prefer this outcome and avoid a protracted value conflict.

2. Offer a Concession on a Core Value

You may be able to induce cooperation from a reluctant counterpart in a value conflict by making a difficult but symbolic concession on a key principle.

In a 2007 study, Jeremy Ginges of the New School for Social Research and his team presented various proposals for resolving the Palestinian-Israeli conflict to citizens residing in the West Bank and Gaza: Jewish-Israeli settlers, Palestinian refugees, and Palestinian student supporters of Hamas. All three groups rejected proposals that would require their group to make a concession on a core issue in exchange for peace. And when each side was also offered significant economic aid, they were repulsed by the idea of trading their sacred values for cash.

However, when asked whether they would accept the peace deal if accompanied by a significant concession from the opposing side on one of its sacred values, all three groups became willing to negotiate. The Israeli settlers agreed to make concessions if Hamas accepted Israel’s right to exist. The Palestinian refugees grew more flexible if Israelis would relinquish their claim to the West Bank. And the Palestinian students became ready to bargain if the Israelis were willing to officially apologize for Palestinian suffering in the conflict.

When sacred values are at stake, we are likely to be offended by the suggestion that our support can be “bought.” Proposing a meaningful sacrifice on one of your own core values may demonstrate your seriousness, inspire reciprocation, and avoid a value conflict.

3. Affirm the Other Side’s Positive Qualities

In a value conflict, thinking about qualities you appreciate in your counterpart, such as trustworthiness or deep convictions, can help parties create value, researchers Fieke Harinck of Leiden University in the Netherlands and Daniel Druckman of George Mason University found in their research.

This result dovetails with findings from University of California at Los Angeles professor Corinne Bendersky showing that negotiators can soften their counterpart’s firm stance on a seemingly sacred value by making statements that affirm the counterpart’s status, such as “I have a lot of respect for people like you who stand by their principles.” It seems an opponent’s affirmation of our status buffers us against the identity threat we’d suffer if we compromised on a core issue and makes us more open to value creation in the process.

What other strategies have you found to be effective in resolving value conflict?

Negotiation Skills

Claim your FREE copy: Negotiation Skills

Build powerful negotiation skills and become a better dealmaker and leader. Download our FREE special report, Negotiation Skills: Negotiation Strategies and Negotiation Techniques to Help You Become a Better Negotiator, from the Program on Negotiation at Harvard Law School.


notable negotiations

Top 10 Notable Negotiations of 2022

Our Top 10 Notable Negotiations of 2022 highlight key lessons that negotiators can take away from dealmaking and conflict resolution in government, business, and beyond.

In early 2022, just as much of the world was beginning to emerge from strict Covid restrictions, Russia’s unprovoked war on Ukraine sent shockwaves across the globe. The Program on Negotiation’s Top 10 Notable Negotiations of 2022 highlight the diplomatic efforts aimed at ending the conflict and mitigating its consequences, along with a range of significant government and business negotiations that shaped the year.

10. Bringing Brittney Griner home. In government negotiations to secure the release of Women’s National Basketball Association star Brittney Griner from Russia, where she was imprisoned for bringing cannabis oil into the country, U.S. president Joe Biden faced wrenching choices. The Kremlin insisted it would trade only Griner for notorious Russian arms dealer Viktor Bout, imprisoned in the States, and would not include former U.S. Marine Paul Whelan, serving 16 years in Russia on espionage charges. In a deal that highlights the challenges of negotiating with ruthless opponents like Russian president Vladimir Putin, Biden opted to bring Griner home.

9. Complicitors in the downfall of FTX. Early in 2022, Sam Bankman-Fried raised $500 million from investors for FTX, his cryptocurrency exchange, by making a “take-it-or-leave-it offer,” the New York Times reports. Without leaving room for negotiation, Bankman-Fried told investors he planned to run the company with little oversight and encouraged them to “support him and observe,” according to one investor who heard the pitch. By the end of the year, FTX had collapsed, and Bankman-Fried had been arrested for wire fraud, money laundering, and other charges. The fact that so many seasoned investors fell for FTX’s claims highlights the risk of becoming complicit with wrongdoing in negotiation.

Negotiation Skills

Claim your FREE copy: Negotiation Skills

Build powerful negotiation skills and become a better dealmaker and leader. Download our FREE special report, Negotiation Skills: Negotiation Strategies and Negotiation Techniques to Help You Become a Better Negotiator, from the Program on Negotiation at Harvard Law School.


8. A surge in strikes. As in 2021, labor shortages gave workers leverage to demand better treatment from their employers. When New York City and several states moved to reduce the persistent earnings gap between men and women by requiring employers to include salary ranges in job ads, numerous companies started doing so voluntarily. Many workers successfully voted to unionize, including employees at 200 Starbucks stores. In addition, strikes were up 39% in 2022 over last year. The University of California reached a tentative agreement to end a strike by about 36,000 employees, promising wage increases of up to 55%. These trends show the power individuals can gain by forming coalitions intent on change.

7. Consolidation is blocked in publishing. In the realm of M&A negotiation, the Biden administration continued its efforts to curb corporate consolidations and promote competition. Most notably, in October 2022, the Justice Department won its bid to block publisher Penguin Random House’s planned $2.18 billion acquisition of rival Simon & Schuster. The outcome had some experts wondering if Amazon would be the next target of the government’s efforts to promote competition in publishing.

6. Elon Musk’s Twitter debacle. Most of 2022 was consumed with the question of whether Tesla CEO Elon Musk would buy Twitter. After he finally did, in October 2022, the rest of the year was taken up with the question of whether Twitter would survive Musk. The leader’s disastrous postdeal moves—from laying off key personnel to crowdsourcing pivotal business decisions in Twitter polls—shine a spotlight on a common negotiation mistake: focusing more on closing a deal than on what will happen when it does.

5. An ambitious global agreement on biodiversity. In December, all nations but two—the United States and the Holy See—approved a sweeping United Nations agreement aimed at safeguarding 30% of the Earth’s land and oceans by 2030 and taking other actions to prevent biodiversity loss. The nonbinding agreement is an attempt to stem a projected extinction of one million plants and animals in the decades ahead as a result of climate change, agriculture, overfishing, pollution, and other factors attributed to humans. U.S. participation was blocked by Republicans, who appeared to view the talks as a win-lose negotiation between business and environmental interests.

4. A rail strike averted. The specter of a strike or lockout loomed over a high-stakes labor dispute between U.S. freight rail companies and their employees’ labor unions. With almost one-third of U.S. freight carried by rail, an interruption in service was expected to devastate the economy. The parties reached a deal, but a majority of union members then rejected it, angered by a requirement that they use unpaid leave to attend medical appointments. Congress swooped in, voting overwhelmingly to impose the agreement and avoid a work stoppage.

3. Congress passes a gun-safety deal. Against long odds, the U.S. Senate passed a bipartisan gun-safety bill, which Biden signed into law on June 25. In the aftermath of mass shootings in Buffalo, New York, and Uvalde, Texas, 15 Republican senators were willing to make concessions on their party’s steadfast resistance to gun-control measures. The behind-the-scenes maneuvering offers advice to those working on closing the deal in negotiations, including the importance of selling your agreement to constituents and framing the deal for maximum impact.

2. A modest—but critical—agreement between Russia and Ukraine. After Russia blockaded the Black Sea at the start of its war on Ukraine, most of Ukraine’s abundant grain harvest was trapped in silos. Without it, famine and political unrest were real risks in East Africa and the Middle East. A three-month international negotiation process led to a July agreement between Russia and Ukraine to bring more grain to market. Russia briefly withdrew from the deal in October 2023, after accusing Ukraine of using the maritime corridor to stage military attacks, but the parties managed to extend the deal, which has eased food prices worldwide. It was a small sign of hope amid a brutal conflict.

1. The West unites on Russia sanctions. Just days after Russia attacked Ukraine on February 24, the European Union, Canada, the United Kingdom, and the United States announced they would unleash the most punishing sanctions package ever deployed against a single country—the result of feverish negotiations that caused the Russian ruble to collapse. The determination and tenacity of the Ukrainian people and their leader, President Volodymyr Zelensky, inspired the usually fractious parties in the West to come together. Sanctions haven’t stopped Putin’s war, but they have hampered his ability to fight it.

What other negotiations would you add to this list of Top 10 Notable Negotiations of 2022?

Negotiation Skills

Claim your FREE copy: Negotiation Skills

Build powerful negotiation skills and become a better dealmaker and leader. Download our FREE special report, Negotiation Skills: Negotiation Strategies and Negotiation Techniques to Help You Become a Better Negotiator, from the Program on Negotiation at Harvard Law School.


moral leadership

Moral Leadership: Do Women Negotiate More Ethically than Men?

Moral leadership involves encouraging others to negotiate ethically when representing their organization. Research looks at whether gender differences in moral identity affect how people bargain.

A key element of moral leadership is motivating others to uphold both their own ethical standards and those of the organization, even when temptations to behave unethically arise. Past research has found that women are generally less accepting of unethical behavior than men and tend to act more ethically across a wide range of contexts. But does this pattern extend to negotiation as well? The answer may shed valuable light on the role of leadership in negotiation and how ethical influence operates at the bargaining table.

Negotiation Skills

Claim your FREE copy: Negotiation Skills

Build powerful negotiation skills and become a better dealmaker and leader. Download our FREE special report, Negotiation Skills: Negotiation Strategies and Negotiation Techniques to Help You Become a Better Negotiator, from the Program on Negotiation at Harvard Law School.


Overall, women have been found to be less tolerant than men of a wide array of unethical negotiating strategies. In a study by Michael P. Haselhuhn and Elaine M. Wong of the University of California, Riverside, for example, 25% of men used deception to negotiate a deal as compared with only 11% of women.

In their 2017 Organizational Behavior and Human Decision Processes article “A Social-Cognitive Approach to Understanding Gender Differences in Negotiator Ethics: The Role of Moral Identity,” Jessica A. Kennedy (Vanderbilt University), Laura J. Kray (University of California, Berkeley), and Gillian Ku (London Business School) looked more closely at possible gender differences in negotiator ethics. The study’s nuanced findings can inform those aspiring to moral leadership. 

Relationship Goals

As compared with men, women are more likely to be socialized to view themselves as interdependent with others and to be more attuned to relationships and others’ emotions. Generally speaking, men are socialized to define themselves as more independent and less reliant on others.

Consequently, Kennedy, Kray, and Ku hypothesized that women internalize morality into their identities more strongly than men do. “Because being moral helps people build and maintain relationships,” Kennedy and her colleagues write, “women are likely to adopt goals and values that promote the welfare of others. Over time, these goals and values may translate into identifying strongly as a moral person.” Because people with stronger moral identities tend to behave more ethically, the researchers hypothesized that women also would be more ethical negotiators.

Moral Disengagement

In several experiments, the researchers found some support for their theorizing—but only up to a point.

In one experiment, the researchers measured participants’ sense of moral identity, in part by asking how important it was for them to have certain characteristics associated with morality, such as being caring, fair, generous, helpful, and so on. Next, participants read a negotiation scenario involving the sale of a used car that had one minor and one major mechanical problem. The researchers then measured participants’ degree of moral disengagement—the extent to which they rationalized away unethical decisions—and assessed how committed participants were to negotiating ethically with a potential buyer of the used car.

Female participants internalized moral traits more strongly than male participants. They also were less likely than men to morally disengage from unethical negotiating practices and were significantly less supportive than the men of unethical negotiating tactics.

When Money Trumps Ethical Concerns

Interestingly, however, women’s negotiation behavior was not morally superior in a follow-up experiment by Kennedy, Kray, and Ku. In the experiment, participants played the role of a hiring manager negotiating the salary of a job candidate. The participants were told that the job would be eliminated in six months due to a restructuring, a fact that the candidate did not know.

Would women be more likely than men to reveal this fact to the candidate? When participants did not have explicit financial incentives to reveal the information, women were more forthright than men about the short-term nature of the job in the simulation that followed. However, when participants were told they would receive $100 for negotiating the lowest salary, women were just as likely as men to behave unethically.

Overall, the findings suggest that women may be socialized to be more ethical negotiators than men. However, when financial incentives to lie or cheat loom large, women may be just as tempted as men to focus on maximizing profit at the expense of their morality.

These results have implications for organizational leadership. In particular, when following principles of moral leadership, it would be a mistake to assume that male employees are more likely to behave unethically than female employees. No matter a person’s gender, financial incentives can tempt them to take ethical shortcuts. To encourage more ethical behavior, highlight the ethical concerns that surround upcoming negotiations and reduce financial incentives to behave unethically.

What other leadership qualities and practices of moral leadership have you found to be useful in negotiation?

Negotiation Skills

Claim your FREE copy: Negotiation Skills

Build powerful negotiation skills and become a better dealmaker and leader. Download our FREE special report, Negotiation Skills: Negotiation Strategies and Negotiation Techniques to Help You Become a Better Negotiator, from the Program on Negotiation at Harvard Law School.


BATNA

BATNA and Other Sources of Power at the Negotiation Table

3 sources of power negotiators can use at the bargaining table

Having a BATNA, your best alternative to a negotiated agreement—is one of the three primary sources of negotiating power at the bargaining table, according to negotiation researcher Adam D. Galinsky and New York University’s Joe C. Magee:

1. A strong BATNA.

Your best alternative to a negotiated agreement, or BATNA, clarifies your options, strengthens your confidence, and helps you make more informed decisions throughout the negotiation process.

By cultivating a strong outside alternative, you gain the power you need to walk away from an unappealing deal.

BATNA Example: A homebuyer could improve her power in a negotiation with a seller by finding another house she likes just as much.

Negotiation Skills

Claim your FREE copy: Negotiation Skills

Build powerful negotiation skills and become a better dealmaker and leader. Download our FREE special report, Negotiation Skills: Negotiation Strategies and Negotiation Techniques to Help You Become a Better Negotiator, from the Program on Negotiation at Harvard Law School.


2. The importance of role power.

Power can come from a strong role, title, or position, such as a high rank in an organization.

When negotiating with your boss, for instance, you sometimes may need to cede to his preferences because of his high status.

3. Psychological power can change negotiation outcomes.

Negotiators can bring a sense of psychological power to the table—the feeling that they’re powerful, whether or not that’s objectively the case.

Simply thinking about a time in your life when you had power can bolster your confidence and improve your outcomes, Galinsky and Magee have found.

Regardless of its source—a strong BATNA, a powerful role, or a feeling of power—power has the same consistent effects described in this article.

When preparing for a negotiation with a powerful counterpart, try to increase your own sense of power on as many of these levels as possible.

Related Dealmaking Article: Six Strategies for Creating Value at the Negotiation Table: The following six haggling strategies can give the skilled negotiator the upper hand in negotiations with sellers over a product. Read the following negotiation skills tips and negotiation strategies to learn how to maximize value at the bargaining table through distributive negotiation methods such as haggling.

Related Negotiation Skills Article: Are You Ready to Negotiate? – In negotiation, success and preparation go hand-in-hand. Follow these three negotiation skills tips to learn how the skilled negotiator prepares for her upcoming session at the bargaining table and how these three negotiation tips can improve your agreements.

Related Business Negotiations Articles:
Advice for Bargaining Abroad: Tips on How To Overcome Cultural Barriers: How to handle difficult negotiations with a counterpart that is at a distance? The following negotiation skills tips can be applied to any business negotiation as well as any negotiation involving a fellow negotiator who is not physically present at the bargaining table.

The Deal is Done – Now What? – How to build long-term, sustainable relationships long after the negotiation agreement is signed. Many negotiators focus on the negotiation at hand, however, the best negotiators recognize that the current deal is a cornerstone in a potentially long-term relationship. Learn how to build value-creating, sustainable relationships with your negotiating counterparts and how the first deal can set the tone for all future interactions between negotiators. Whether business negotiations or in international negotiations, the ability to sustain a value-creating, mutually beneficial relationship is the hallmark of all skill negotiators.

What other tips could our readers use to improve their BATNA? Let us know what you think in the comments.

Related BATNA Article:  What is BATNA? How to Find Your Best Alternative to a Negotiated Agreement

Negotiation Skills

Claim your FREE copy: Negotiation Skills

Build powerful negotiation skills and become a better dealmaker and leader. Download our FREE special report, Negotiation Skills: Negotiation Strategies and Negotiation Techniques to Help You Become a Better Negotiator, from the Program on Negotiation at Harvard Law School.


Adapted from “Enhance Your Power,” first published in the August 2011 issue of Negotiation.

Originally published in 2014.